What constitutes a “second or successive” petition in habeas challenges to death sentences?

By Anna Christensen
on Mar 26, 2010 at 10:00 am

Here, Harvard Law School’s Jay Rapaport recaps Wednesday’s oral argument in Magwood v. Patterson.  Jay’s earlier preview of the proceedings is here.  Check the Magwood v. Patterson (09-198) SCOTUSwiki page for additional updates.  [DISCLAIMER: Howe & Russell and Akin Gump represented the petitioner, but Jay was not involved in the case.]

Jeffrey Fisher represented petitioner Billy Joe Magwood.  Mr. Fisher began by arguing that Magwood’s current challenge to his resentencing “cannot be a second or successive petition for the very simple reason that it challenges a State court judgment that has . . . never been covered in a habeas petition before.”

Several of the justices — most notably Justice Alito — pressed Mr. Fisher on his characterization of sentence and conviction as distinct judgments.  According to Justice Alito, “[F]or habeas purposes, the only thing that is relevant is the judgment pursuant to which the petitioner is held in custody.”  How, Justice Alito asked, could Magwood challenge his re-sentencing yet simultaneously be unable to challenge the underlying conviction?

Mr. Fisher acknowledged that the Court had treated conviction and sentence as separate judgments in certain contexts and as part of the same judgment in others.  However, the minimal federal intrusion in this case — there was no challenge to the petitioner’s conviction — made it appropriate to treat the conviction and sentence as distinct.  Mr. Fisher also drew an analogy to the law of res judicata, which allows claims for new grievances even if they are identical to prior claims.  Justice Scalia pressed Mr. Fisher on this point, stating that the petitioner’s claim went to the “very same act” as the original petition.  Mr. Fisher disagreed and pointed out that the trial court had called the re-sentencing a “complete and new assessment of the evidence.”

Mr. Fisher then turned to the difficulties arising from the State’s position.  As a textual matter, Mr. Fisher argued that the State’s claim-focused approach begged the question of what constituted a “second or successive” petition.  Mr. Fisher also stressed the practical difficulties of the State’s approach.  In Mr. Fisher’s view, it was unclear what would happen to claims that were raised but not adjudicated because the court disposed of the case on other grounds.  Worse still, in Mr. Fisher’s view, was that the State’s rule would bar petitioners from seeking new habeas relief if the State committed the same error that led to the original habeas relief.

Alabama Solicitor General Corey Maze argued on behalf of the State.  Justice Breyer wondered whether the State’s rule, which turned on whether a claimant had a “full and fair opportunity” to litigate a claim, was too complicated for judges to apply.  Mr. Maze responded that federal courts used exactly that approach for habeas challenges to federal sentences.

The justices also probed the State’s position on what constituted a “full and fair opportunity” to litigate a question.  At separate times, Justices Scalia and Breyer inquired whether AEDPA would bar a claim that was raised in the original petition but was not decided because the court resolved the case on other grounds.  In such a case, Mr. Maze acknowledged, AEDPA would not bar the claim because there had been no chance to adjudicate it fully.  However, a petitioner would still have to raise all possible claims in his petition in order to prevent them from being barred.

Finally, Mr. Maze stressed the interest of the State and the victim’s family in finality of judgment.